31 July 2005

HINT: Rather than downloading the entire post, go to Odeo (click the green box at the upper left corner of this blog). If you are so inclined I ask that you subscribe. However, even if you don't subscribe, you should listen to Lex Radio by clicking the play button under the picture. By doing this you will get streamed audio rather than having to wait for the entire mp3 file to download before you can listen to it.

[addendum] Well, I used FeedBurner to make the podcast feed (changing Atom into RSS). When I tested it with iTunes it didn't work. In fact, iTunes actually opened a pdf file when I clicked on it. I then downloaded iPodder. It downloaded the right file but when I tried to play it iTunes would come up as iPodder's default player. I went into iPodder's settings and reset it to send files to Winpows Media Player and it worked (the player would give me a generic error statement but when I clicked play anyway it did). Anyway, If anybody has any suggestions about fixing this I'm open to suggestion.

[addendum 2] Well, my podcast works fine over at Odeo. Not sure how it got there. Either the good folks at Odeo are really good at searching out new podcasts or someone out there was kind enough to submit it. Now I have to include this bit of code

Well, I've been stiffed by two of my clients who had appointments this afternoon. However, a third managed to get ahold of me from the jail. He couldn't call my cell phone directly so he called a friend and had that friend call me and then put the two phones together, speaker to mouthpiece - mouthpiece to speaker. All-in-all, an innovative way to get a call to your attorney.

The only problem was that while we were talking his friend was engaging in a running screaming match with somebody else. I couldn't hear half the stuff he said and I had to yell so he could hear me. Every once in a while there would be a lull in the screaming and Client would try to get his point across but the screaming always started back up before he could finish. Thankfully, a family member had called about a half hour earlier and told me what was going on so finally I just yelled out the answers over my cell phone and (during a final lull) he says that he gets it and goodbye.

27 July 2005

CarPundit and Mr. DA were commenting on my last post about how Atwater allows people who cannot be arrested to be arrested.

The question in Atwater was "whether the 4th Amendment forbids a warrantless arrest for a minor traffic offense, such as a misdemeanor seatbelt violation punishable only by a fine."

The court's answer: "We hold that it does not."

Now, CarPundit astutely points out that the rationale for this decision is not as broad as the holding. The rationale is that under the common law breach of peace misdemeanor arrests were allowed without warrants, as well as those arrests allowed under statutes passed by legislatures. Therefore, when Texas Code § 543.001 allows arrests for any violation of the Transportation Code it does not violate the Constitution.

I say again, the rationale is not as broad as the holding. Basically, this holds constitutional any arrest for any traffic offense and, through analogy, any other misdemeanor.

The court states that these are areas better left to States to legislate and cites statutes such as Va. Code §46.2—936 as proof that this is not a problem of constitutional magnitude. This section is, for lack of a better term, a catch and release statute. It requires that an officer to act in a specific manner:

Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title [Motor Vehicles] punishable as a misdemeanor, the arresting officer shall . . . take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice.

The problem is that, at least in Virginia, this law is unenforceable. A blatant violation of this statute - such as bringing someone in for a weekend in jail for having tinted windows - has no remedy. Understand that without a remedy written into the statute no procedural law in Virginia really carries much weight short of the federal constitutional boundaries. There is no such thing as exclusion of evidence for violation of laws or rights under the Virginia Constitution (of course, this matters to me more than the 1983 action in Atwater). Along the lines of Whren, it is an excuse for allowing a shakedown. I've discussed this previously here.

But surely, an officer wouldn't violate the law. Yeah, right.1

The case on point in Virginia will be Moore v. Commonwealth. In Moore the officer made an illegal arrest leading to discovery of evidence of a more serious crime. The officer was required to issue a summons and release the defendant under Va. § 19.2-74(A)(1); instead, he expanded the detention into a full custodial arrest and performed a search subsequent to the arrest. The judge refused to throw the evidence out, explicitly citing Atwater.

A three judge panel overturned the conviction based upon Knowles v. Iowa, 525 U.S. 113 (1998)(citation is not enough to allow a search). Yasmeen discussed this here and here. However, the Court of Appeals has agreed to hear this en banc and whenever it does this in a case which favored the defendant the smart money is on a reversal of the three court panel. The real question might be how the Virginia Supreme Court handles this situation.

1 I say again, as I have said before, I don't lay this at the feet of the officers. Officers are trained to do their utmost to bring law-breakers to justice. The courts and legislatures determine how far the officers can go. The legislature here says officers can only go so far. The courts tell them they can go further and the courts are the ones who interpret and enforce the law. I've no gripes with an officer who does what the court tells him he can do.

Skelly links thru to a discussion of whether the Mass. lawyers are correct or incorrect in trying to get paid at a higher rate, even after the State Legislature has given one raise. Much as Skelly has done, I will not comment at this time.

Anyway, what grounds have I to complain? The Virginia General Assembly has allotted funds for a raise in the payment ceiling for felonies. For your basic felony Virginia now pays $428 instead of $395, thus paying for 4.75 hours of work on a felony rather than merely 4.39 (pay rate is $90 per hour). Of course, it's a step closer to the $445 that the law says I am to be paid. Va Code sec 19.2-163. That would pay for 4.94 hours of representation.

Having stood in a courtroom with a 19 year old Black, male defendant and looked up at the twenty older, white, well-to-do jurors (OMG they can't all be bankers or banker's wives! Can they?), I understand the sentiment. I think it's probably a constitutionally infirm stance, but I understand the sentiment.

4) Now, now Skelly. You know that your office is supposed to try every trial no matter how guilty the client is and how severe a tax he will pay for the trial. I mean, after 6 months or so of each attorney trying a jury or two a day you'll have made it through what would normally have taken a week or two and you can start filing all those speedy trial motions and 1983 motions for overcrowded jails. The prosecutors would probably have to stop prosecuting the smaller crimes just so they could make sure the rapists and murderers actually went to trial. Of course, this strategy gets a lot of people (at least in the beginning) much more prison time then they would have. If your Bar has any problems with you just refer them to the Good Father - he'll straighten them out.

9) Random checks are coming to the NY subways. "Random" will, of course, devolve into people who fit whatever a particular officer pictures a person in possession of drugs to look like (and those who look like bombers as well). There will be whatever number of checks of little old ladies and priests are needed to uphold the charade but the number of searches which turn up illicit items is going to be higher then what would happen in a random sampling.

10) SoCalLaw has started podcasting. Y'all will remember I toyed with both video and audio blogging a while back but stopped because it was just too time consuming. Maybe I'll go back to putting up a once a week video or audio post. If I do you can blame it all on SoCalLaw.

I lived in Sharm El-Sheikh for 6 months as part of the MFO. The locals are good people and hard working folk. There is also a battalion of U.S. Soldiers, an Italian Naval presence, Dutch MP's, and Egyptian forces.

It appears that the terrorists bypassed the military targets and set off one suicide bomb by running an exploding car into a hotel lobby. This was not particularly successful. The reason for this is probably because the hotels there are built spread out around a pool and restaurant. Hitting the lobby could only get the few people there - most of whom would be the Egyptian employees.

The second one was set off in the solely Egyptian part of town, in the market (Egyptians hang out at the markets shopping and going to coffee shops). This one killed far more people, almost certainly all Egyptians.

Having grown up in Kentucky, I know that there is only one true genre of basketball. However, I realize that some of you have been drawn into watching the NBA; heck, there might even be Clippers fans out there. For those of you who have been drawn off the true path and into the NBA heresy, there is actually someone out there tracking and analyzing the illegal activities of NBA players. Admittedly, this is how I mostly hear about NBA players with the exception of sports radio hosts complaining about how boring Tim Duncan is (he's the best player in the world and they complain because he doesn't cause trouble - it goes a long way toward explaining why I'm not the hugest NBA fan).

All humor and ranting aside, Professor McCann has done what appears to be an interesting post on when in their careers NBA players have gotten in trouble with the law. It's too late and I don't have the brain power left to really focus on the post (I've spent the night working on a nasty appeal - my brain is fried). I'll have to revisit it tomorrow.

20 July 2005

I was watching a possession of marijuana charge today. The defendant was pulled over for driving suspended and the officer found marijuana in the glove compartment.

The officer testified that the defendant admitted the marijuana was his.

On cross, the officer admitted that all he could remember the defendant stating several times "C'mon, gimme a break." He had no memory of any question on his part or any other statement by the defendant.

The judge, sua sponte, starts asking the officer if he is relying on his report and if he wrote the report the same time as he took the statement. The officer replies, "I wrote the report on the same day."

The defense tries to strike the evidence because the officer has no independent recollection. The prosecutor submits. The judge refuses to strike the evidence explaining that yes, the officer has no independent recollection but that the report was contemporaneous and therefore allowed into evidence as a hearsay exception.

I must admit that I sat there a little shocked; I'd never seen this exception used in this manner. After I finished my case I went down to the law library to look up this exception. The test for this exception is:

Let's examine that for a minute. I think that in this case the exception fails the 4th test. Taken literally, we already know that the officer cannot remember the statement and therefore cannot vouch for the accuracy of the written memorandum. A truly horrendous interpretation of the 4th test could interpret it to mean that the officer has to testify that he files honest reports. As if an officer is going to say, "Well, I don't know judge. Every third report or so I liberally infuse the report with a series of lies." This renders the 4th test a farce and is pretty clearly not what it is meant to reach.

In fact, the 4th test is the most likely limiting factor for this exception. It would have to be a case by case analysis but there is a perfect example of what this exception is supposed to reach in Bailey v. Commonwealth, 20 Va. App. 236 (1995). In Bailey the clerk from a store could not recollect in court what items had been stolen from the store. However, he was able to read from the police report the items which had been stolen. He was able to do this because after the break-ins he went through and inventoried the items with the deputy and told him all the items which were missing. He clearly recalled having done this and could testify to its general truthfulness because he had the memory of having done the specific inventory.

Now, compare that to the evidence allowed in above. The officer could not testify to the general truthfulness because he did not remember asking the specific question or receiving the specific answer. Basically what I'm saying is that the defense wasn't attacking him because he couldn't remember whether the defendant confessed to having "a bag of weed" or "the bag of weed" in the car. In such a case, the general recollection of having asked the question and gotten the answer would allow a fallback onto this hearsay exception for the exact wording from the report. The defense was raising the hearsay exception because the officer didn't even have a general memory of a question or statement.

And then there's Crawford. This is about as crystal clear a violation of Crawford as I can think of. To be fair, this issue was not raised before the judge. However, as applied today in court, this is a heck of a dodge to get around the right to confront.

Applied properly, as per Bailey, this exception doesn't greatly infringe upon the right to confront. I can cross examine the clerk in that case as to why he inventoried certain items, whether the deputy was suggestive, how he knew items were missing, &cetera.

Applied as I saw it in court today there is no way to actually cross examine. The officer doesn't remember a question or answer. I can't ask him anything pertinent. At best, I can ask generalities such as how the officer usually writes his reports. That's not a confrontation on the pertinent issue.

Now that I've lit into the trial judge's decision, let me say that I am impressed that the judge actually stated the reason for his decision. I disagree with it and I'm a little perturbed that the judge raised it and not the prosecutor (who was a very competent prosecutor - not someone who needs help from the judge). Still, any judge who states the reasons for his rulings is someone who should be complimented for it.

[addendum] Looking back over the 4 part test, I'm not sure the officer passes the first part of the test either. He wouldn't seem to have first hand knowledge of the possession.

"In big crime cases there seems to be a lot of prep and discovery done. Why's that?"

This was after I had commented about the limited discovery in Virginia.

First, let me say that in many - if not most cases - the only things which could be discoverable are the police report and witness statements. Some jurisdictions give these over (and still win their cases); other jurisdictions refuse. The law and Rules in Virginia allow a prosecutor to deny these to me. It's dumb and things would run a lot smoother if the law required them to be handed over but it's the way things are here.

In big cases there is more to discover. Rule 3A:11 of the Supreme Court of Virginia requires the exchange of reports (ie. ballistic tests, handwriting analyses, etc.). In lesser cases there isn't any of this (except the ubiquitous lab analysis showing the residue was in fact cocaine). The police and prosecutor's office just are not going to pour that kind of money into your client's bad check case. However, in murders, rapes, bank robberies, etc. the money will be spent; these reports will be available.

Furthermore, I think that in more important cases competent prosecutors will give far more evidence then required because of the seriousness of the case. They do this because getting a conviction to stick is more important than playing games. They know that if they convict my client appeals will follow and every moment of the case will be reviewed from top to bottom and it cannot be good for an elected official if a murder conviction is overturned (and, yes, it does happen - even in Virginia). The desire to make sure a serious case is handled correctly can also motivate the judge to make sure that discovery is broader than usual.

"I've heard it said you should never ask a question in cross you don't know the answer to. I guess that's not always feasible, eh?"

No, it's not always feasible to know the answer to a question before asking it. However, I find that most of the time police officers are willing to talk before trial and between what the officer says and what your client says you can usually have a pretty good idea what questions are the ones you should ask.

Important Practice Point: Do Not ask that Perry Mason moment question of your client's ex-girlfriend. She will lie. She is emotionally committed to getting your client thrown in jail. She is also angry with your client because he dumped her for that *%^&^%. She will lie. I know the question is tempting to ask because if she gives the honest answer your client should be cleared. Leave the doubt in the air, don't give her a chance to tell some tale. A failure to prove can be potent (if used properly); a lie from the woman on the stand can be devastating.

Y'know, I've seen BigLaw guys make forays into criminal court before. A guy comes in in the suit that looks like it cost more than I earned all of last month, he has diamond studded cuff links, and his hair is perfectly coiffed. He might as well tattoo "I don't belong" on his forehead. It can be pretty painful to watch as prosecutors {a} have a merry old time gently roasting him over the flames of Tartarus, or {b} get extremely upset because a 5 minute driving suspended case turned into a 45 minute fiasco and lash out.

I think I could transit to a job where I sit in an office and prepare briefs all day long at least that well.

It's Sunday night and I've just spent a few hours at my office prepping for Monday. I head out with last week's accumulated trash (two cardboard boxes and a hefty bag). The parking lot is dead quiet (it's late and I'm the only idiot working on Sunday night). I pull around to the other side of the building, park the car, and get out with the first box of trash for the dumpster.

Out of the corner of my eye I see movement but when I turn to look there's nothing there. All that I see is a dark corner and a sewer drain. It must have been a cat or my mind playing tricks on me.

The dumpster's one of the smaller ones with the plastic tops you open in order to throw things into it. One lid is propped open because someone has piled that side full of computer boxes. I go over to the other side, open it, and throw a box in. Then I go back and get the bag. Again, I open the other side and I'm heaving the bag in

A HEAD POPS UP

I do a backward jump which would make the denizons of the Matrix proud. The head had popped up right under the hand I was holding the lid with and as I lept back, the lid came down trapping my bag of trash half way in.

AND THE HEAD CONTINUES TO STARE AT ME.

There's a fence around the dumpster making the lighting bad so it takes me a second . . .

It's a raccoon.

Which, of course, means there are others in and around the dumpster. And, typical of many raccoons, it isn't the least bit frightened of me. It just stays there staring at me. I ponder for a moment whether I should find a stick and try to shove the bag fully in. However, there are no sticks nearby and after a moment of picturing myself with a couple raccoons latched onto my arm the HeMan instincts fade.

I walk back to my car, keeping an eye on the raccoon watching me from the dumpster and the other on the sewer drain ('cuz I dang well know I'm being watched from there as well).

2) Hmmmm . . . You know, I wouldn't mind if everyone who wanted to sit as a judge had to qualify by having tried at least 5 felony cases a year for the last five years (and at least one of those years as a defense attorney). Ahh, to dream the impossible dream . . .

7) Been there, done that. Except the last time a prison turned me away I had sent it all the paperwork. They just wouldn't admit I had. After I got sent back to my office I checked and I had the fax confirmation about the paperwork they required (a paper faxed by me so that I can confirm I am a lawyer).

8) 15 bank robberies = 7 years in jail. 7 years??? This man obviously had enough brains not to do any of them in Virginia. Also, he did all the robberies because was emotionally scarred by 9/11.

15 July 2005

How can you put together a decent trial strategy if they don't meet with you?

I was concerned that the answer which came to mind might not reflect the experiences of other lawyers so I read the question to another lawyer and asked his opinion. He laughed at me: "If you can't do that you can't do criminal law."

That's a little blunter than I'd state it but generally true (at least in Virginia). It is more true of misdemeanors rather than felonies and more true of some misdemeanors than others.

Basically, if you practice in a particular locality for a while you know the disposition of the most common misdemeanors: marijuana, trespass, petit larceny, &cetera. You meet with your client for a few minutes before trial and ask the important questions:

1. What happened? (By this time I usually know the officer's version of the event)

2. How do you want to plead?

3. Are there any witnesses you want to testify? Are they here?

4. What's your background (family, job, school, &cetera)?

Most of the time with this information you can handle the basic case. It's not optimal but you had best be adept at it.

If anything comes up which requires further research, non-present witnesses, or anything else then you go before the judge and ask for a continuance. Sometimes the judge will allow it; sometimes the judge will require you to go forward anyway. As an aside: By far, the reason a client most often wants a continuance is "I can't go to jail today." He'll come to court on his 6th driving suspended charge and be upset when I tell him that he's going to get some jail time. Judges are particularly unsympathetic to clients offering this reason (which is why, if there is any other reason I will offer it instead).

The important thing to remember is that in Virginia no matter what the result is and no matter how your client pled in General District Court he has an absolute right to a trial de novo in Circuit Court. This is because the lower trial court has constitutional deficiencies (i.e no juries) which can only be solved by allowing defendants the option of a brand new trial in the higher trial court with all the constitutional protections. In effect this makes the trial in the lower trial court into a type of preliminary hearing. The judge has the option of dismissing the case and if he does it is finished (unlike a regular prelim when a prosecutor can direct indict). However, if the judge finds your client guilty your client has the option of accepting the sentence or taking his shot with a jury or judge in the higher trial court. At that hearing you've seen the prosecutor's evidence, talked to your client and have had time to prepare for your case.

Felonies operate generally the same way. It still surprises me how many of my clients who are facing serious prison time don't come to see me before their first day in court. It makes some sense in misdemeanors wherein most people who have had frequent contact with the court realize that these are handled "on the day"; I'd still rather have prior contact but I understand. However, when facing 20+ years in prison you need to go see your lawyer. YOU NEED TO GO SEE YOUR LAWYER!!! Even when I set appointments these guys don't come to the office. I had one guy fail to show up both on last Friday at 4 p.m. and this Monday at 4 p.m.

Still, most felony trials have a preliminary hearing in the lower trial court. In Virginia we don't have those month long prelims I see on CourTv; a prelim usually lasts about as long as a misdemeanor trial (longest I've seen was an afternoon for a multiple defendant murder prelim). Even if the client hasn't come to see me I can talk to him on that day and basically get a glimpse at part of the prosecutor's evidence. The actual trial is usually a couple months later and there is time to prepare in between. Hopefully Client will come to the appointment I set for him when you meet at the prelim (or at least give me a working phone number).

Women get away with some of the most outrageous clothing choices when they come to court. I think this is because male judges (who wouldn't hesitate to dress down a male dressed inappropriately) have the old fashioned notions that it is not their place to comment on a female's clothing. However, today I was in a court with a female judge.

A young woman walked into the court with a not quite see through blouse that looked like it had been painted on, no bra, and everything+ that a young woman is supposed to have. All eyes male in the room looked up as she walked up to the bench.

The judge was looking down at the paperwork as the young woman walked up. Then the judge looked up and this conversation took place:

Judge: To begin with, that clothing is not adequate for court. Where do you live?

Woman: Here in the county.

Judge: Deputy, how much longer are you going to be in court today?

Deputy: This is my last case.

Judge: Okay, what's your next court date?

Deputy: 25 October.

Judge: We're continuing this case until 25 October. Ms. Smith you will come back to court on 25 October wearing appropriate clothes. Good day.

14 July 2005

You know, when I walk into the courtroom and see that Tom is the prosecutor I should just adopt a policy of just walking back out and calling in sick. The strangest things happen when he's on the other side. However, this time it was actually something in my client's favor.

Background: Client was accused of attempted robbery and use of a firearm in a felony. On the day of trial, prior to the actual hearing on the facts, both co-defendant and I raise a motion to dismiss because the trial has not taken place within the 5 months allowed under Virginia law when a defendant is held in jail. The prosecutor argues that this should have been raised in a written motion pre-trial and is now barred. The judge agrees with the prosecution. Trial proceeds and my client is convicted of both charges.

Wednesday: The sentencing hearing takes place and it doesn't go well. The judge is one who is known for sentencing above the guidelines for anything that involves a a physical threat or attack. Of course, the guidelines already take those factors into account as part of the charge but, as the guidelines are completely discretionary in Virginia, there's not much I can do about that. Client gets three years on each charge for a total of six. It's about a two year departure over the guidelines.

After that's done I stand up and ask the judge to set an appeal bond: "Your Honor, you remember that we had a speedy trial motion prior to trial which you over ruled. As I'm sure you know, the law changed on 01 July so that it is what you believed it to be. However, the trial was prior to that date. Consequently, I feel that there is a solid issue to appeal. I'd hate for my client to spend any more time than he must in jail if the issue is as solid as I believe it to be."

I'm expecting the typical setting of a monstrously huge appeal bond or denial or the more recently popular denial plus "Mr. Lammers, if the appellate court accepts the petition you have the leave of this court to return and ask for a bond."

Then the judge states: "Mr. Lammers, if there's an issue here, we should discuss it in this court."

My head instantly snaps up from the podium to the bench; I'm pretty sure Tom's did over at the prosecutor's table as well. A little surprised, I tell the judge I'll file a motion to rehear within the allotted time. The judge offers not to issue an order in this case and bring us back in a month to reargue the issue. Then he asks Tom what his thoughts are about the matter. Tom was not the attorney at trial and is playing catch-up as the judge and I talk back and forth about arguments which were made on the motion prior to trial. He's not really in a position to do anything but agree to the judge's offer.

So the judge tells me he's not going to rule on my motion for an appeal bond, he's going to treat my motion on that as an oral motion for a rehearing, he's not going to issue the final sentencing order, we need to brief the issue, and that we'll reargue it in 30 days.

Eventually I leave the courtroom with what I'm sure was a look of wonderment on my face. If I can get results like that I need to ask for more appeal bonds.

That's right, set up a modus operandi so that the prosecution can introduce every single B&E at trial whether they can prove your involvement beyond a reasonable doubt or not. And I'm sure the deliberate attempt to instill fear will work in your favor during sentencing as well.

13 July 2005

Here, from more rooting around in my old appeals, is a discussion of vagueness:

A. The Law

"At common law, it was the practice of courts to refuse to enforce legislative acts deemed too uncertain to be applied. A similar approach was taken by the United States Supreme Court in some early cases where the separation of powers doctrine was invoked to support the proposition that Congress, by the enactment of an ambiguous statute, could not pass the law-making job on to the judiciary. The Court has also reversed convictions under uncertain criminal laws on the basis that the accused was denied his right to be informed 'of the nature and cause of the accusation’ as guaranteed by the Sixth Amendment. However, today it is the void-for-vagueness doctrine which prevails: the due process clause[] of . . . the Fourteenth Amendment (when a state statute is involved) require[s] that a criminal statute be declared void when it is so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.'" LaFave-Scott, Substantive Criminal Law § 2.3, 126 (1986)(multiple citations omitted).

The constitutional application of the vagueness doctrine to statutes which do not trigger First Amendment concerns considers two factors: (1) fair warning and (2) arbitrary and discriminatory enforcement. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).

1. Fair Warning

The Federal Supreme Court has stated that "[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964). However, the Court has treated this mainly as an aspirational statement allowing interpretations and limitations imposed by State appellate courts to bring unacceptably vague penal statutes back within constitutional limitations. Id. As well, "[w]ords of a statute . . . may [also] be considered sufficiently definite because they have a well-settled meaning in the common law, or because of their usage in other legislation." Lafave at 128 (citations omitted). It has been suggested that fair warning actually means fair warning that one needs an attorney to interpret the statute. Id. at 129.

2. Arbitrary and Discriminatory Enforcement

The Federal Supreme Court has stated "that the more important aspect of vagueness doctrine is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)(internal citations omitted). A statute is "unconstitutionally vague on its face [if] it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute." Id. at 361.

This is from an old appeal I wrote several years back (I'm going through old appeals looking for some law I know I researched once upon a time). It's a brief history of Mayhem which is now know as Aggravated Malicious Wounding in Virginia:

5. Mayhem

Virginia’s aggravated malicious wounding has its roots in common law mayhem. At common law mayhem was a misdemeanor. Commonwealth v. Lester, 2 Va.Cas. 198, 4 Va. 198 (1820). The law’s original intent was to preserve the combat ability of those freemen in the military service of the sovran. 53 Am.Jur. 2d, Mayhem and Related Offenses, § 1. The offense became statutorily defined in Britain and in most of the United States; in the process it became a felony. Id. but see Peoples v. U.S., 640 A.2d 1047 (D.C., 1994) & Moore v. United States, 599 A.2d 1381 (D.C. 1991)(D.C. retains common law elements of mayhem).

"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony in any case where the victim is caused thereby to be totally and permanently disabled."

Construing mightily against the plain language of the statute and the rule of lenity, the Court of Appeals held that “the term "totally ... disabled," as used in [1990] Code § 18.2-51.2, does not mean a state of absolute helplessness, but means the "inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted.” Branch v. Commonwealth, 14 Va.App. 836, 840, 419 S.E.2d 422, 425 (1992). In so doing it brought the law of Virginia more in line with the ancient common law standard that a conviction for mayhem requires some sort of impairment which would greatly restrict the usefulness of an individual to the society at large. It also brought the Virginia standard closer to the more modern common law standard that sees mayhem as resulting in “permanent injuries, which render[] a member or organ of the body either "wholly useless," or [] its usefulness "greatly impaired." Peoples.

In 1991 the Legislature changed the rather draconian plain language of §18.2-51.2 in a manner which seemed designed to bring the statute in line with common law elements of mayhem:

"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

Subsequent to this change of language the Courts Appellate of the Commonwealth have moved away from the common sense standard found in Branch. They have held that scars which do not impede function are sufficient to satisfy the requirement of "significant physical impairment." See Commonwealth v. Donker, 256 Va. 443, 507 S.E.2d 75 (1998)(four inch facial scar is significant permanent impairment), & Newton v. Commonwealth, 21 Va.App. 86, 462 S.E.2d 117 (1995)(“cosmetic disfigurement” is sufficient to satisfy the statute).

As long as I have been practicing I have been told that Virginia is one of only four States which have jury sentencing. However, when I ask if anybody knows which other three do this I usually get blank stares. Does anybody out there know the other three States?

Reed, who testified during his trial against the wishes of his court-appointed attorneys, frequently went into profanity-laced tirades and told jurors he didn't care if they gave him life in prison.

"There's things I choose to do, like, if I go in a store and choose to take a Snicker's bar," Reed testified. "If you catch me, you catch me. If not, I'm going to go home and eat it up and go on about my business, dog."

11 July 2005

An interesting statute:

§ 22.1-142. There shall be set apart as a permanent and perpetual fund, to be known as the "Literary Fund," [funded by] . . . (v) all fines collected for offenses committed against the Commonwealth. The Literary Fund shall be invested and managed by the Board of Education as prescribed by § 22.1-145.

So all those times I've urged judges and juries to go for a fine rather than imprisonment I've actually been helping school kids. I'll have to remember to point that out the next time the judge is about to send my client to jail. "But think of the children your Honor. You're not only harming my client and his family, your denying books to school children.."

Wisconsin police arrest a juvenile and interrogate him for several hours. They let him eat, drink, use the restroom, etc. but refuse him any access to his parents. At the end the kid signs a confession written by the officer.

The defense appeals three issues:

1. Was the confession voluntary?2. Should all confessions made outside the presence of parents be thrown out?3. Should all interrogations of minors be electronically recorded in order to be admissible?

The Wisconsin Supreme Court is particularly troubled by the purposeful refusal to contact parents (in contravention of Wisconsin law) and cites its own precedent holding that

The failure to promptly notify [parents] and the reasons therefor may be a factor, however, in determining whether the confession was coerced or voluntary. If the police fail to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel, that would be strong evidence that coercive tactics were used to elicit the incriminating statements."

After addressing several other factors the Court finds

"Weighing the above personal characteristics against the pressures and tactics used by the police, we determine that the State has not met its burden of proving that Jerrell's written confession was "the product of a free and unconstrained will, reflecting deliberateness of choice." Rather, we conclude that it was "the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist." Accordingly, we determine that the written confession was involuntary under the totality of the circumstances."

The Court then refuses to adopt a per se rule that all confessions without parental presence be excluded. In so doing it reminds the courts that this is to weigh heavily against the prosecution and it reminds the police of their specific statutory requirement to contact parents ASAP.

Then the Court moves on to electronically recording of juvenile confessions. Invoking broad supervisory powers which it has under Wisconsin's Constitution and precedent it states that excluding confessions which are not electronically recorded does not stop the police from getting confessions in this manner. Thus the Court is not requiring the police to do anything, it is merely putting forth a rule of evidence. It's hair-splitting but technically correct.

The Court then goes through several paragraphs of reasons as to why this is a good rule and points to a call from the ABA to establish rules such as this. Personally, I think this weakens the Court's argument because it makes it look like the court is legislating. One wishes the Court had merely stated

We find that without an electronic record a court cannot determine whether a minor's confession is voluntary or not due to the presumed immaturity of the child. In all cases of uncertainty, the Court is required to decide the facts in favor of a defendant. As this case has shown this rule has not always been adhered to. Therefore, we rule that such confessions must be taped in order for the court to review their circumstances.

In the end the Court rules

"[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention."

Thereafter follows numerous concurrences and dissents about this last issue (everyone agrees the confession was inadmissible because it was coerced). They go heavily into Wisconsin's Constitution and precedent. I must admit to having not read all that and I leave it to you to decide for yourself whether this was a valid exercise of the supervisory power of the Wisconsin Supreme Court or improper assumption of legislative powers.

We've all had this discussion with a client or two. In general, I explain the options and tell my client I'm ready to go to trial if he so desires. There have been occasions when a client has refused an offer of 7 months (having already served 6) and gotten 3.5 years. If I can see that sort of thing coming the discussion with my client can get rather intense.

09 July 2005

Last week the old computer went away and a slightly less old computer took its place (the e-machine had to go). However, in the change I lost track of several blogs I had planned to add. I'll probably rediscover you all but if anyone out there has a recently started criminal law blog please contact me via my email: lammersk ~ At ~ yahoo ~ Dot ~ com

Officers, Troopers, and Deputies will never admit to a ticket quota (at least the smart and moderatley well-trained ones won't). However, I know I've sat next to a couple of Troopers and heard them talk about getting unloaded on by their superiors because they were tasked to other matters and had not done enough road work the last month (road work being measured by tickets).

Most of my work is indigent defense. I sit in my office every Friday from 2-5 p.m. for open office hours so that all my clients can come to see me.1 My cards, which are handed out to my clients when I am appointed, state very clearly that my clients need to come see me at least two weeks before trial on a Friday afternoon. My answering service is instructed to inform people to come see me on Friday afternoon. About every third week or so a client actually comes to the office. I would bet that well over 80% of my clients don't come to meet with me prior to the first court date.

90% doesn't really surprise me all that much. At least not for clients who are on the street. I think that 99% of the time I get to the jail and visit my client before each of his court dates. However, I must admit that this has gotten much harder over time as clients are stored at regional jails which makes visiting so very time consuming because of the long drives.

1 This is the only day of the week when I am certain that the courts wherein I usually practice do not have afternoon court (although one court has lately shown a disturbing tendency to have morning court go to 2 p.m. or later). I would rather take that time for myself or to go to visit clients at jail (with more and more of my clients being scattered around the Commonwealth in different regional jails I could really use Fridays for visits). However, I am trying to make sure that all clients have an opportunity to meet with me prior to trial.

Well, duh. They spent money to prove that? The next ground breaking study will prove that you must be female to get pregnant.

Actually, the perfect look for an attorney probably involves being tall, solid but skinny, gray hair and a look of wisdom so that people just assume you know what you're doing. As a short, round guy from a family wherein hair just doesn't go gray, I'm pretty much doomed.

Well, at least I wear glasses; that has always made some people assume I'm smart. At least until they get a good look at me.

07 July 2005

Question 1: In this day of bloggers, isn't everyone at least potentially a journalist? A law that allowed journalists to protect their sources might allow anyone to claim to be a journalist and refuse to disclose a conversation.

This seemed like a reasonable objection (or at least a complication) until it occurred to me, "So what?"

Question 2: As a practical matter, how bad would it really be if nobody could be compelled to disclose a private conversation? How often are there criminal cases where (1) a witness has to disclose what someone else said, (2) it was a private conversation, (3) it's admissible, (4) the witness doesn't want to testify, (5) but does so anyway (instead of refusing or lying), (6) out of concern for a contempt charge (rather than as part of a deal on another charge).

How often would anyone even know that the conversation took place? This seems like the sort of thing that could only come up in weird circumstances, such as the national security issues present in the Plame case, or when a journalist publishes information from the conversation.

Answer 1: I think whether we are journalists depends greatly on the definition of journalism. Webster online defines it as:

When I write purely about what has happened to me (see the next post) that's probably not. Nor do I think it's journalism when I link to other blogs or news stories and maybe make a short comment.

Basically, that's a long-winded way of stating that I think that a lot of bloggers are journalists and a lot are not; you'd have to do a case by case analysis.

Answer 2: The problem with journalists is that the conversation isn't private. It is revealed - just without attribution.

Consider this example: Let's assume that members of a local gang started reading my blog and decided to feed me information about gang activity in the city of Richmond. I start reporting it here and put pretty much everything they and their associates tell me into print. One day the girlfriend of a member tells me that she saw Boo, Sling, and Trey "finish a bunch of White-Boyz [a rival gang] down on 27th Street cuz they was fighting over the meth." The next day I publish the fact that last week's unsolved ambush murders were done by the "27th Street Thugz."

Is my conversation with the girlfriend private? Not really; she knew when she told me that I would publish the information. She probably thought it would be good for the gang's reputation. However, she does expect that I won't sic the police on her for telling me the information.

Are there serious reasons that I don't want to disclose that information? Yes. I'd lose my sources. Other sources wouldn't want to deal with me. The girl's life would be put in serious danger. My life might be put in danger ("get the snitch").

On the other side is the strong need to solve 4 murders done in broad daylight, two blocks from the police station.

Can my conversation with Girlfriend be introduced into court? No, it's classic hearsay. Can the police arrest me for not cooperating in the investigation? Probably not; they could try to stretch obstructing justice but that's actually a statute which deals with physical obstruction or active lying. They may get a magistrate to sign off on it but I doubt it survives in front of a judge. However, they can get me in front of that investigating grand jury and cite me for contempt when I refuse to disclose the name of my source.

I think there are multiple reasons why we haven't seen more of these kinds of cases. First, some States have shield laws (I have no idea how many). Second, the press is going to crucify any local prosecutor who goes after a MSM reporter. An elected prosecutor is going to make sure he really needs the information before he goes after the reporter. After all, he already knows who did it; it would probably be easier to crash down on the 27th Street Thugz and get the info. Third, a reporter from the MSM is going to have a well-funded, well-prepared legal team which is going to fight all the way; this would tie up a number of resources the prosecutor badly needs elsewhere.

The second and third of these probably wouldn't apply to most bloggers if a prosecutor came after them. The first might even be a moot point if the blogger didn't have the money for a legal battle to uphold his shield rights. However, I think that most bloggers won't ever have to worry about this. In general, we aren't out developing sources; in fact, the only blog that readily comes to mind as having had sources was probably SL&P during the immediate aftermath of Blakely. There are undoubtedly political blogs that get original material from sources but I can't name any.

Does anyone out there know of a blogger who has been required to reveal a source?

Nobody in law school happened to mention to me the wonderful time I would have standing in a room copying papers both on my finicky copier and my fax machine (which doubles as a copier). Gotta love putting together multiple copies of petitions for appeals so that I can mail them all off to everybody under the sun.

06 July 2005

We have had an alligator swimming around in one of our local lakes since May. Local law enforcement, animal control, and everybody else has been trying to catch it, under the assumption that it is dangerous.

Yesterday, a fisherman caught and killed the thing. It was almost 4 feet long and he clubbed it to death (although he states that he only meant to render it unconscious).

There has been a hue and cry because this man killed the creature. All the local news shows have been showing people talking about how harmless it was. One guy even told the news "I've been hunting for him (with a net) for three weeks but (if it hadn't been killed) tonight was the night I was going to catch him." Personally, the thing looked big enough to mangle a hand or do some serious damage to a foot or leg; I know I'd have wanted to put it out of commission if I'd caught it while fishing.

For all three trial judges out there who might be reading this blog - Please either agree with me that that evidence is objectionable or disagree and tell me it is admissible because [fill in the blank].

When you don't explain why the evidence is admissible and only tell me that my argument "goes to the weight of the evidence, Mr. Lammers", my first instinct is to interpret that as "yes, you're correct, it should be excluded but I'm not going to do it and I think the appellate courts are more likely to back me than you." I also take it to mean that that bit of evidence is going to carry every bit of weight the prosecutor wants it to carry with you.

I know it's a terribly unfair way to see things but you must remember that at that moment I am in the heat of battle and not seeing things in a fair light.

[addendum: What brought this to mind is that I am reading a transcript while writing an appeal and the judge did this. As I read it I can see the probable reason for allowing the item into evidence but I don't know if it was the judge's reasoning. All I know is that I was told my argument would only go to the weight (where I expected it to weigh about as much as a gossamer web). I was a wee bit upset at this; still, Client was found not guilty on the charge that evidence related to (on an unrelated statutory argument) so I cannot claim any harm.]

We all know how these bond hearings go: the prosecutor pushes for higher than he expects to get, the defense attorney asks for lower than he expects to get, and the judge usually splits the difference, or favors the prosecution somewhat. It seems that all sides agreed that the man was to be bonded and if he made a $15,000 bond he probably would have made a $25,000 bond. Pointing a finger at the judge doesn't change that fact.

Why didn't the prosecutor ask for no bond? He's usually the guy in the room with a copy of the defendant's record.

I was reading an unpublished case from the Virginia Court of Appeals which dealt with the introduction of evidence "subject to cross." I don't know if this exists in other jurisdictions. I know I sure as heck didn't learn anything about it in law school.

Here's how it works: A party has a witness on the stand and moves some sort of evidence into the case (physical evidence, a written confession, a report, etc.). The other party doesn't state an objection but notes that this is "subject to cross." The judge then enters the item into evidence and the questioning of the witness continues. When the witness is passed and the second party does his cross examination. During this cross examination the second party can inquire as to things such as chain of custody, validity of a test, accuracy of a report, etc. If the second party establishes some sort of error that party then moves to strike the evidence from the record. If the judge agrees it is stricken.

I don't particularly care for this procedure. It should be of very limited use, only for items which have absolutely no other effect on the evidence or testimony of the witness or case. It should never be allowed in a jury trial. Still, it seems to be the default position in a number of courtrooms for wider evidence. I know that I have stood and asked the judge to voir dire a witness as to certain evidence and been told that the evidence was being entered subject to cross and that I could address it during cross examination. Of course, the difficulty is that once that barn door is opened a whole lot of cattle might get through before you can close it again. Imagine a report coming in and an expert basing 2/3 of his testimony on it before you can get it thrown out on cross.

Is this just a Virginia procedure or does it exist out there in the rest of the country as well?

I promised myself that I would not do anything legal over the 4th weekend and, by no small miracle, I went law free for the last 3 days. Of course, that left me with a lot of time. I read three books, none of which were in the slightest way legal or even self improving - unless you count science fiction books as "broadening one's horizon." I don't; they're just a weakness (Superman has kryptonite, Green Lantern has yellow, I have the inability to put down a military/sci-fi book once I've read the first paragraph). BTW, for those of you with a similar weakness I really recomend Elizabeth Moon's The Serrano Legacy. It's better than the Honor Herrington (though not quite as good at the battle sequences).

I did a couple other things like going to see War of the Worlds (terrible, just plain bad), and then I still had time to kill. Sadly, when people are bored it is their critters who suffer:

It's an interesting theory but I don't agree with it. I do agree with Mort that it's not all about stupidity either. Sure, a number of clients are there because they did something stupid and were unlucky enough to get caught at it. However, as I've said before, I think that clients (1) don't fear jail all that much, (2) engage in a cost benefit analysis of a life where they take a number of risks for their own benefit(shoplifting, buying drugs, etc) and learn that most of the time they don't get caught, and (3) have been living in a world where people scam off each other often so that their first instinct is to try to scam their way out of it (talk to the police, make up their story with their cellmate, send a letter to cousin Al telling him what lies to say on the stand, etc.). I just wish they'd realize that trying to scam me generally doesn't do them much good. I'm the defense attorney; it's my job to be somewhat gullible. However, if someone swears to me that he was at cousin Al's and never talked to the police, it is devastating to the case when I find out (usually during pretrial negotiations but sometimes mid-trial) about the letter and the videotaped confession.

Actually, let me amend what I said above. Clients engage in self-destructive behavior. However, I think it is a matter of focus. Clients often have adopted a short term outlook. In their world it makes sense. However, when the techniques they have learned to use to good effect in the short term interact with the legal system they fail. In that way it is self-destructive.

This happened a lot more when I was first practicing (and still does with some clients). In particular, a number of my clients cannot seem to wrap their minds around the concept of principal in the second degree. Trying to rationally explain to my client that the fact he drove his buddy to the house and drove his buddy from the house - knowing his buddy was going to steal his aunt's priceless jewelry - means that he was a principal in the second degree and every bit as culpable can be painful. Often, the client will have read the law on that particular offense and we'll have a conversation along these lines:

"I didn't take nothing."

"You drove him there . . ."

"But I didn't even go into the house."

"You don't have to, you knew what he was going to do."

"But I didn't do it and they can't stick this charge on me!"

"Yes, they can. It's called being a principal. You helped him do it so you are as responsible as he is . . ."

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.